DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4-6, 8-13, 15, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over and Vondran et al. (herein referred to as Vondran, FR 3030276 A1) in view of Brown et al. (herein referred to as Brown, “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) and Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”)
With regard to Claim 1, Vondran teaches an animal or pet food product widely marketed for pets such as cats and dogs ([0001]). Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produced from 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
With regard to Claims 9 and 10, Vondran teaches including plant extracts in the form of evening primrose oil and/or linseed oil ([0004]). Vondran teaches the one or more plant extracts may comprise less than about 0.001%, 0.01%, 0.1%, 0.5%, 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 11%, 12%, 13%, 14%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 55%, 60%, 65%, 70%, 75%, 80%, 85%, 90%, 95%, 99% or 100% by weight of the total kibble ([0005]). Thus, reading that the composition can comprising 1 to 10 weight% of fat in the form of evening primrose oil and/or linseed oil.
With regard to Claim 11, Vondran teaches in some embodiments the composition comprises one or more minerals such as, but not limited to, calcium, phosphorus, potassium, sodium, chloride, iron, copper, manganese, zinc, iodine, selenium, cobalt, sulfur, fluorine, chromium, boron, and oxalate ([0008]). Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients for animal or pet nutrition ([0008]). Therefore, it would have been obvious to one with ordinary skill in the art to optimize the amount of mineral supplement in the composition to ensure the composition is suitable for the desired pet nutrition ([0008]). See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claims 12 and 13, Vondran teaches in some embodiments the composition comprises comprise one or more amino acids such as, but not limited to, arginine, histidine, isoleucine, leucine, lysine, methionine, phenylalanine, threonine, tryptophan, valine, taurine, carnitine, alanine, aspartate, cysteine, glutamate, glutamine, glycine, proline, serine, tyrosine, and hydroxyproline ([0008]). Vondran also teaches the compositions may contain essential nutrients such as taurine ([0008]). ]). Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients for animal or pet nutrition ([0008]). Therefore, it would have been obvious to one with ordinary skill in the art to optimize the amount of amino acids and essential nutrients in the composition to ensure the composition is suitable for the desired pet nutrition ([0008]). See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claim 15, Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients, such as, for example, a protein source, a carbohydrate source, a fat source, and any other ingredients suitable for animal or pet nutrition ([0008]).
However, Vondran is silent to the type of carbohydrate.
Brown teaches a composition which contains broken rice as the carbohydrate (Table 1).
Therefore, the combination of Vondran and Brown impart reasoning for obviousness because Vondran teaches any suitable carbohydrate is appropriate for the composition and Brown teaches utilizing broken rice has a carbohydrate in pet food in combination with duckweed. Thus, showing it was known in the art for rice to be successfully used as a suitable carbohydrate and it would have been within the knowledge at the time of filing for one with ordinary skill in the art to have utilized rice as a carbohydrate on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 24, Vondran teaches an animal or pet food product widely marketed for pets such as cats and dogs ([0001]). Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products.
However, Vondran is silent to the protein originating from duckweed of the genus Lemna, Wolffiella, or Wolffia, or combinations thereof.
Stein teaches the duckweed concentrate is specifically a Lemna Protein Concentrate from the genus Lemna (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”). Stein teaches aquatic plants from the genus lemna are relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Stein to use Duckweed from the genus Lemna because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected Amino Acid Index and apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
Claims 2-3, 22-23, and 26-28 are rejected under 35 U.S.C. 103 as being unpatentable over and Vondran (FR 3030276 A1) in view of Brown ( “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”), and Dr. Basko (“The Many Health Benefits of Mushrooms (And How to Add Them To Your Pet’s Diet”)
With regard to Claims 2 and 3, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to < 50 weight % of the protein content consists of protein concentrate obtained from duckweeds.
Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners and , duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent to > 50 weight % of the protein content comprises one or more plant-based, non-duckweed protein sources and/or protein from fungi.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claim 22, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, Vondran is silent to < 50 weight % of the protein content consists of protein concentrate obtained from duckweeds of the genus Lemna, Wolffiella, or combination thereof.
Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners and , duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate from the genus Lemna because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent to > 50 weight % of the protein content comprises one or more plant-based, non-duckweed protein sources and/or protein from fungi.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected amino acid index and the apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
With regard to Claim 23, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate derived from the genera Lemna because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent to > 50 weight % of the protein content comprises one or more plant-based, non-duckweed protein sources and/or protein from fungi.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected amino acid index and the apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
Lastly, because the combination of Vondran, Brown, Stein, and Dr. Basko teaches substantially the same composition as claimed. The composition would inherently be sufficient for a daily ration for a dog or cat, and supplies all necessary nutrients for dogs or cats. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
With regard to Claim 26, Vondran is silent to the isolated duckweed protein, the duckweed protein concentrate, or the combination thereof is derived from the genus Lemna
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein teaches duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran in view of stein to utilize duckweed protein concentrate derived from the genera Lemna because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
With regard to claim 27, Vondran is silent to wherein the protein content contains protein from one or more fungi selected from the group consisting of Agaricus bisporus, Lentinula edodes, and Pleurotus ostreatus.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Dr. Basko to include white mushrooms (Agaricus bisporous) as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”).
With regard to Claim 28, Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Thus, Brown reads such that protein content would be 2.53%, 5.06%, and 7.59%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, which equates to 2.53%, 5.06%, and 7.59% protein in the feed composition (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Claims 25, 29, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over and Vondran (FR 3030276 A1) in view of Brown ( “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”), Dr. Basko (“The Many Health Benefits of Mushrooms (And How to Add Them To Your Pet’s Diet”), and Appenroth et al. (herein referred to as Appenroth, “Nutritional Value of the Duckweed Species of the Genus Wolffia (Lemnaceae) as Human Food”).
With regard to Claims 25 and 30, Vondram is silent to wherein the isolated duckweed protein, the duckweed protein concentrate, or the combination thereof is derived from the group consisting of the genus Wolffiella, the genus Wolffia and a combination of the genus Wolffiella and the genus Wolffia.
Appenroth teaches duckweed have also been used for a long time to feed domesticated animals, either by providing them temporary access to duckweed grown ponds or by supplementing their diet with harvested duckweed, fresh or dried (Introduction). Appenroth teaches duckweed derived from the genus Wolffia (table 1).
Therefore Appenroth imparts reasoning for obviousness because the teaching show that the claimed duckweed and specifically the genus Wolffia was known to be was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select duckweed from the genus Wolffia, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 29, Vondran teaches In some embodiments, the food kibbles of the present invention comprise one or more vitamins such as, but not limited to, vitamin A, vitamin D, vitamin E, vitamin K, vitamin C, thiamine, riboflavin, niacin, pyridoxine, pantothenic acid, folic acid, vitamin B12, biotin, choline ([0009]). It would have been obvious to one with ordinary skill in the art through routine optimization to modify the amount of vitamins within the composition to achieve the desired nutritional effect. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Further, Vondran teaches in some embodiments, the food kibbles of the present invention comprise one or more macronutrients such as, but not limited to, moisture, protein, fat (emphasis added), crude fiber, ash, dietary fiber, soluble fiber, insoluble fiber, raffinose, and stachyose ([0008]). Vondran teaches the fat is suitable for animal or pet nutrition ([0008]). Thus it would have been obvious to one with ordinary skill in the art to modify the amount of fat within the composition to achieve the desired nutritional effect. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
However, Vondram is silent to wherein the isolated duckweed protein, the duckweed protein concentrate, or the combination thereof is derived from the group consisting of the genus Wolffiella, the genus Wolffia and a combination of the genus Wolffiella and the genus Wolffia.
Appenroth teaches duckweed have also been used for a long time to feed domesticated animals, either by providing them temporary access to duckweed grown ponds or by supplementing their diet with harvested duckweed, fresh or dried (Introduction). Appenroth teaches duckweed derived from the genus Wolffia (table 1).
Therefore Appenroth imparts reasoning for obviousness because the teaching show that the claimed duckweed and specifically the genus Wolffia was known to be was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select duckweed from the genus Wolffia, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Response to Arguments
Applicant's arguments filed 10 July 2026 have been fully considered but they are not persuasive.
First, applicant argues that Vondran does not explicitly teach complete feed formulations or explicitly teach any intention to formulate a complete feed. Per applicant’s specification, a complete feed is characterized as a "compound feed which, by reason of its composition, is sufficient for a daily ration”. Vondran teaches the kibble dough may be prepared by any suitable means from any suitable ingredients, such as, for example, a protein source, a carbohydrate source, a fat source, and any other ingredients suitable for animal or pet nutrition. This is additionally taught in WO 2016/099477 A1, which applicant references, which states the food kibbles also provide nutrition for the pets by including a variety of ingredients ([0001]) and the kibble dough can be prepared in any suitable means from any suitable ingredients, such as, for example, a protein source, a carbohydrate source, a fat source, and any other ingredients suitable for animal or pet nutrition ([0044]). Thus, one with ordinary skill in the art would interpret the kibble taught by Vondran as a complete feed because the ingredients within the kibble are suitable for pet nutrition. In addition, Vondran teaches embodiments in which the kibble is fed daily ([0007]). Thus, Vondran teaches the kibble can be fed daily and provides the desired nutrition to pets and as a result Vondran reads such that the kibble is a complete feed in view of applicants characterization. The examiner would also like to note that although applicant arguments Vondran cannot be a complete feed, applicant does not clarify their point as to why Vondran can not be a complete feed. Applicant has made mention of one specific embodiment in Vondran that would not be a complete feed and has alleged that kibble would not necessarily be complete feed. But applicant has not responded to the vast majority of the Vondran reference which, as pointed to above, would teach a complete feed under broadest reasonable interpretation and are consistent with applicants characterization of complete feed in the specification. Therefore, applicant’s argument is not found to be persuasive.
With regard to Vondran being a vegan feed, Vondran clearly teaches embodiments wherein the product is made from 100% plant extract(s) ([0005]). Applicant does not further define vegan in their specification. The recognized definition, from Merriam-Webster diction, of vegan is a strict vegetarian who consumes no food (such as meat, eggs, or dairy products) that comes from animals. Thus, because the embodiment taught by Vondran only contains plant extract(s), the composition would be recognized as vegan. Continuing, it is important to discussed that Vondran teaches that some embodiments can have various meats in it and one of ordinary skill would not consider it vegan. However, this is merely a singular embodiment. Vondran further teaches the description of certain embodiments is merely exemplary in nature and is in no way intended to limit the invention, its application, or uses. Further, by Vondran stating “in some embodiments” one of ordinary skill in the art would readily recognize would mean that there are other embodiments without those ingredients. See MPEP 2123(I) A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component); Thus, applicant’s argument is not found to be persuasive.
Next, applicant argues that Brown does not provide motivation to modify Vondran to use isolated duckweed protein and/or duckweed protein concentrate in a vegan complete feed for dogs or cats. Applicant argues that a person with ordinary skill in the art would have placed much greater emphasis on the digestibility problems than on the possibility of firmer stools. Applicant highlights a passage from Brown which states, “The inclusion of duckweed significantly reduced DM, GE and CP total tract apparent digestibility, which should be considered when formulating diets using this ingredient.". In this statement, Brown is not saying to NOT include duckweed but merely stating its inclusion should be considered for the desired effect of the diet. As discussed, Brown advantageously teaches firmer stools and reiterates that this is important to pet parents. Therefore, Brown provides ample motivation on why to include duckweed. Applicant’s argument is not found to be persuasive.
Further applicant states, “ a person of ordinary skill in the art would have placed much greater emphasis on the digestibility problems than on the possibility of firmer stools” However, this statement is going beyond the intended use of “A person of ordinary skill in the art”. The examiner highlights MPEP 2141.01(I) which states, The person of ordinary skill in the art is a hypothetical person who is presumed to have known the relevant art at the relevant time. Factors that may be considered in determining the level of ordinary skill in the art may include: (A) "type of problems encountered in the art;" (B) "prior art solutions to those problems;" (C) "rapidity with which innovations are made;" (D) "sophistication of the technology; and" (E) "educational level of active workers in the field. In a given case, every factor may not be present, and one or more factors may predominate." In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995); Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir. 1986); Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983). Therefore, assuming what a person with ordinary skill in the art would value as more important is incorrect. It can only be assumed the knowledge that they have. Therefore because Brown provides motivation one with ordinary skill in the art would have had motivation to incorporate duckweed. Thus, applicant’s argument is not found to be persuasive.
Applicant argues that in one of Brown’s experimental diets sodium caseinate, which is the main protein in milk, is used. And therefore, Brown provides no teaching or suggestion to formulate a vegan complete feed. This argument is not found to be persuasive because Brown is not relied upon to teach the vegan composition and is merely relied upon to show the use of duckweed in feed compositions. Therefore, applicant’s argument is not found to be persuasive.
Next, applicant argues that Stein provides no reasonable expectation of success that Lemna protein concentrate could be used in a vegan complete feed composition for dogs or cats.
Applicant argues that Stein provides no reason to choose the genera Lemna, Wolffiella, or Wolfia instead of Landoltia punctata. However Stein is not relied upon to teach the use of the genera Lemna, Wolffiella, or Wolfia. Stein is only relied upon to teach the use of duck weed concentrate. Applicant argues Steins results are related to weaned piglets. This argument is not found to be persuasive because Brown teaches the use of duckweed was known in the art to be consumed by dogs. Therefore, Stein teaching more in depth the use of duckweed and more specifically duckweed protein concentrate is reasonably pertinent to the particular problem with which the inventor was concerned. Thus, because it was already well-known dogs would consume the duckweed, as taught by Brown, the applicants arguments are not found to be persuasive. Applicant further argues that Steins data shows that the digestibility of Lemna protein was worse than that of soy or fish meal for nearly all amino acids. However, Stein explicitly states Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). Therefore, applicant’s argument is not found to be persuasive.
With regard to applicant’s experimental data, the examiner acknowledges the data shows palatability. However, the data presented by applicant does not show that it is unexpectedly more palatable than the closest prior art as is required by MPEP 716.02(b) and 716.02 (e). See MPEP 716.02(b)(I) which states The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) (Mere conclusions in appellants’ brief that the claimed polymer had an unexpectedly increased impact strength "are not entitled to the weight of conclusions accompanying the evidence, either in the specification or in a declaration."); Thus applicants conclusion of increase palatability is merely a conclusion by applicant and not show both statistically and practically the increase palatability is unexpected compared to the closest prior art. See MPEP 716.02(e) which further clarifies An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. As stated above, the increase palatability claimed by applicant is not compared to the closest prior art. Thus, Applicant’s argument is not found to be persuasive.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
